184 PIGEONS. 



before a justice of the peace, forfeit and pay over and above the value of the bird any sum not 

 exceeding £2." * 



Mr. G. Francis argued that the conviction was right. The killing of the pigeon was unlawful. 

 There was certainly an old case in the time of James I., in which one judge said that if 

 pigeons ate the com the owner of the land might kill them ; but it was added that he might not 

 take them by any means prohibited by law. And there was an ancient statute prior to that 

 case, and a later statute of the 2nd Geo. III. making the shooting of a house-pigeon unlawful. 



Mr. Justice Mellor : Surely that Act only applies to malicious or wanton killing ; not to killing 

 by a farmer on his own land. 



Mr. Francis submitted that it was a positive prohibition of shooting house-pigeons or doves, 

 and the act itself being unlawful, the giving of the notice did not make it lawful. The owner 

 of the land had his civil remedy, but he must not take the law into his own hands. 



Mr. Justice Blackburn : He may take the pigeon damage feasant, if he can get at it. (A laugh 'i. 



Mr. Justice Mellor asked if it could realty be contended that it was a criminal and punishable 

 act for a farmer to shoot a pigeon while eating his corn ? 



Mr. Francis said he could no more shoot a pigeon than he could a pig. He must take it if he 

 could, or sue for the damage. A pigeon was a tame animal, and had the animus recertendi. 

 Besides, here the pigeon was going off as fast as it could. (A laugh). 



Mr. Justice Mellor: The animus revertendi was shown 'strongly enough, no doubt ( a laugh) ; 

 but he might return. 



Mr. Justice Blackburn : The object of killing liim was to prevent his return. 



Mr. Francis urged that even in the case of a dog actually following a hare, it was not lawful to 

 shoot him unless it was necessary to save the hare. So of a dog following a deer. 



Mr. Hannen argued against the conviction that the statute only applied to criminal shooting, 

 and must be construed with reference to the law of larceny. It was larceny to take a pigeon out 

 of the dovecote, but if ont of the cote it would be otherwise, and so if a man shot it, but was 

 not able to get hold of it. It was to such cases the statute applied ; that is, to cases in which 

 there was a criminal animus or intention which fell short, by some accident, of the actual com- 

 pletion of the offence. In the case in the time of James I., Mr. Justice Dodridge said, " If 

 pigeons come upon my land I may kill them, and the owner has not any remedy, provided they 

 be not taken by any means prohibited by statute," though it was true that the Chief Justice was 

 of a different opinion, and held that, as tame pigeons were domestic, and had the animus rever- 

 tendi, they ought not to be killed; but he added, "for the killing of them an action lies ; " so that 

 clearly, at common law, it was only a civil wrong. There was no mens rea in this case, no 

 element of guilt ; there was the mere erroneous assertion of a civil right. The appellant had not 

 fallen into so serious an error as the Lord Chancellor, who distrained ducks, damage feasant, on 

 one of his islets on the Thames, but unfortunately ate the eggs they laid while in his custody, 

 and so was ''cast" for the eggs, though he justified distraining the ducks. t (Much laughter.) 

 It was admitted that the pigeon might be distrained, but who could put " salt upon his tail? " 

 (Laughter.) It was idle to talk of distraining a bird. In the case of pigs or dogs, they could be 

 got hold of and distrained, but it was otherwise of a pigeon, and there was no practical remedy 

 but to shoot it. In 1824, a great case came before this Court about rooks, in which it was laid 

 down that a man on his own land might kill birds or beasts (not game) fera natures, such as 

 rabbits, pigeons, or rooks. In " the Queen v. Cridland," a case in this court in the time of Lord 

 Campbell (7 Ellis and Blackburn's Reports, 871), it was laid down as the general rule of law 

 that, as a bond fide claim of right, justices could not convict summarily. Now, in this case, it 

 was obvious, from the notice, that the appellant was under the impression that he had a right 

 to kill the pigeon, to prevent its eating his corn or coming upon his land. 



The Court said they were of opinion that the appellant ought not to have been convicted. It 

 appeared to have been deemed doubtful whether pigeons were subjects of property ; and though 

 it was now settled that if tame, and reclaimed, they were so, yet still, as the farmer had acted 

 under the honest persuasion that he had a right to shoot the pigeons in order to protect his 

 crops, the conviction was improper, however he might be liable to an action. There might, 

 certainly, be cases in which the killing of a pigeon might be property the subject of a conviction, 

 as a wilful and wanton act. But in this case it was not so, and the magistrates ought not to 

 have convicted. The judgment, therefore, was that the conviction should be quashed. 



* This clause is taken from the 7 and 8 Geo. IV. c. 29, s. 33, and extended to Ireland. 

 + The statement that the Lord Chancellor was "cast' 

 dieted. 



